With the emergence of technology in the workplace, electronically stored information ("ESI") has become an important source of discovery in almost every business dispute. In turn, a company's duty to preserve ESI has come to play an increasingly critical role in litigation. This is especially true considering that stiff sanctions may be ordered against a company which fails to take reasonable steps to preserve its ESI.

The duty to preserve ESI begins at the time litigation is "reasonably possible" - which often predates the filing of a complaint. In order to comply with its duty, a company must first consider what types of ESI it possesses and where that information is stored. ESI includes a wide variety of information, including word processing documents, e-mails, audio recordings, videotapes, instant messages, and Internet usage files, just to name a few. It can be stored in a number of locations, including hard drives, CDs, DVDs, laptop computers, cell phones, and tablet computers.

Once the type and location of all ESI has been identified, a company must then take steps to immediately preserve all ESI that is potentially relevant to the litigation and suspend any deletion, overwriting, or any other mechanisms that could destroy or alter potentially relevant ESI. Furthermore, a company must promptly provide written notice to all personnel (i) directly involved in the events relevant to the litigation, (ii) responsible for maintaining the company's computer system, and/or (iii) who may have access to potentially relevant ESI, instructing them to locate and save all relevant information contained in the company's records.

Taking the proper steps to preserve ESI is something that must be taken seriously. If not handled correctly, your company stands to suffer severe consequences both financially and in terms of adverse rulings in a court case. If litigation appears reasonably possible, and your company is in need of guidance with respect to the preservation process, contact the attorneys at Navigato & Battin for assistance.